Eliasen's Estate, Matter of

• Decision Date: 23 June 1983
• Docket Number: No. 13651,13651
• Citation: 105 Idaho 234,668 P.2d 110
• Parties: In the Matter of the ESTATE OF Charles Edgar ELIASEN, aka Edgar Eliasen, Deceased. Lucille ELIASEN, the widow of Charles Edgar Eliasen, Deceased, Appellant-Cross- Respondent, v. L.D. FITZGERALD, Personal Representative of the Estate of Charles Edgar Eliasen, Deceased, Respondent-Cross-Appellant.
• Court: Idaho Supreme Court

Page 110

668 P.2d 110

105 Idaho 234

In the Matter of the ESTATE OF Charles Edgar ELIASEN, aka Edgar Eliasen, Deceased.

Lucille ELIASEN, the widow of Charles Edgar Eliasen, Deceased, Appellant-Cross- Respondent, v. L.D. FITZGERALD, Personal Representative of the Estate of Charles Edgar Eliasen, Deceased, Respondent-Cross-Appellant.

No. 13651.

Supreme Court of Idaho.

June 23, 1983.

Rehearing Denied Sept. 8, 1983.

Lloyd J. Webb, Twin Falls, for appellant-cross-respondent.

R.M. Whittier, Pocatello, for respondent-cross-appellant.

SHEPARD, Justice.

This is an appeal from a decision of the district court which on appeal affirmed a decision of a magistrate court in a probate proceeding. The principal questions presented are the status at the time of decedent's death of certain property as being community or separate in nature and the applicability of Idaho's slayer statute, I.C. § 15-2-803, to this widow, who shot her husband, the decedent. We affirm in part and reverse in part. The decedent, Charles Edgar Eliasen, a/k/a Edgar Eliasen, was 70 years old at the time of his death in November 1974. Decedent for many years had been in the ranching and cattle business. For some years prior to 1966, the decedent and his brothers, Ronald and Lars, had owned 5,091 acres of property in Rockland, Idaho with some cattle thereon. In June of 1966, the brothers sold the property for the sum of $165,000, which was to be paid $40,000 down, and the remaining balance of $125,000 in annual installments of $12,000 over a period of 16 years, which sum included interest on the unpaid balance at five per cent. The record is unclear as to what portion of the moneys went to each of the three brothers. The decedent and his brother Ronald took their moneys from the sale of the Rockland property and in 1966 purchased a small 120 acre farm in the area of Marsh Valley, Idaho. Each brother contributed $5,000 toward the down payment, but the Marsh Valley farm was obtained in the decedent's name alone pursuant to an arrangement between the brothers that Ronald would not obtain any ownership interest but would rather receive a right to live on that ranch for his life. The brothers together made annual payments of $5,000 on the Marsh Valley ranch until Ronald died in 1967, following which time the payments were made by decedent. The yearly payments on the Marsh Valley property were made with moneys received from the sales contract on the Rockland ranch, together with moneys received by the decedent from cattle sales. In June 1967, appellant Lucille Eliasen began living with the decedent on the Marsh Valley property. In February 1968, the decedent and Lucille had a child, Charles Edgar Eliasen II. The decedent and Lucille Eliasen were ceremonially married in June 1970.

In July 1973, the decedent Edgar Eliasen sold the Marsh Valley property for the sum of $20,000 in cash, and whether he carried a contract for the balance or had the buyer assume the loan is not clear from the record. With the moneys received from that sale, decedent paid some community expenses, bought two vehicles for himself, and bought a mobile home (a down payment of $5,100 and a five-year contract for the remaining balance of $13,700). Decedent also bought appellant Lucille Eliasen a car for approximately $3,000 and gave her $5,000 in cash, which he asserted represented any community interest she might have had in the real property. The decedent took the remainder of the moneys from the sale of the Marsh Valley property, added to its moneys from his own bank account, and purchased a farm in Minidoka County known as the Acequia ranch. The down payment on the Acequia ranch was $26,000, with the remaining balance of approximately $26,000 to be paid in annual installments of $2,500. Only the annual installment for 1974 was paid by the decedent prior to his death.

During the course of their relationship, the decedent and Lucille Eliasen segregated their moneys in separate bank accounts. Lucille owned real property from which she collected rent, and that money was placed in her separate bank account, as were the earnings from her employment. The decedent maintained two bank accounts in his name, into which he deposited the receipts from the Rockland sales contract, the proceeds from the sale of cattle, and the income from the ranch. Lucille had several children from a prior marriage who were also living with and being supported by the decedent and Lucille at the ranch.

In 1974, the decedent and Lucille were having marital difficulties and Lucille moved out of the Acequia residence, following which the decedent filed for a divorce in July 1974. In September 1974, the decedent was suffering from stomach cancer and was receiving chemotherapy. Lucille came to the ranch and shot the decedent, following which he was hospitalized for the abdominal wound. Although the chemotherapy had been effective in inhibiting the stomach cancer, it interfered with the healing of the abdominal wound and had to be discontinued for some time. Following the death of decedent on November 28, 1974, Lucille Eliasen was charged with and pled guilty to assault with a deadly weapon, for which offense she was sentenced to and served time in the Idaho State Penitentiary.

The decedent died testate, leaving his property to the son of the marriage, Charles Edgar Eliasen II, and to Terry Mac Chase, one of Lucille's children by her prior marriage. The widow, Lucille Eliasen, was expressly excluded from the will. When a probate petition was filed in December 1974, appellant Lucille Eliasen filed objections, and from 1974 to the present time, the parties have both filed numerous petitions, including several requests by the widow for the setting aside of homestead and exempt property and for the removal of the personal representative.

During trial at the magistrate court level, evidence was presented, part of which was the deposition of the decedent, taken in the hospital following the shooting and conducted in the presence of counsel for each party and of the trial judge. Following trial, the magistrate entered a memorandum opinion, findings of fact, and conclusions of law holding that all of the property held in decedent's name was separate in character and that the slayer statute, I.C. § 15-2-803, was inapplicable. Thereafter the widow petitioned the court for the setting aside of exempt property and homestead and a family allowance. That petition was granted, but the family allowance was limited to $6,000. The magistrate also allowed attorney's fees to the widow and to the personal representative.

From those orders of the magistrate court, appeals were perfected to the district court which involved the characterization of the property, the approval of the accounting, the award of attorney's fees, and the order limiting the family allowance to $6,000. The district court affirmed the magistrate's rulings that all the property was the separate property of the decedent and that the slayer statute was not applicable. The district court reversed the magistrate's holding that the family allowance was limited to $6,000 and also allowed attorney's fees to the widow. On appeal to this Court, appellant Lucille Eliasen asserts error in the characterization of the property, and the respondent personal representative cross-appeals from the ruling of the inapplicability of the slayer statute. Although some 13 issues are enumerated upon appeal, we have consolidated or restricted them to the following:

(1) Was the trial court correct in its characterization of the property as being separate?

(2) Did the trial court err in allowing into evidence the deposition of the decedent?

(3) Was the trial court correct in allowing the award of attorney's fees to the personal representative and to the widow?

(4) Is the slayer's statute, I.C. § 15-2-803, applicable in the instant case?

I. CHARACTERIZATION OF THE PROPERTY.

The trial court concluded that all the property listed in the decedent's estate at the time of his death was his separate property. That conclusion was based, at least in part, on the court's finding that the decedent and the widow were ceremonially married on June 22, 1970 and had prior to that date lived together unmarried. Appellant widow contends that the finding that the state of marriage did not exist until 1970 was erroneous and that, since the conclusion of separate property was based thereon, that conclusion was also error. We agree with the appellant that the finding as to the date of the marriage was erroneous and that the decedent and the widow had been husband and wife since June 1967 by reason of a common law marriage, but nevertheless we affirm the holding of the trial court that the property in question was the decedent's separate property.

In Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982), we noted that the doctrine of common law marriage was preserved in Idaho by I.C. § 32-301, and that the manner in which a marriage can be proved is outlined by I.C. § 32-203: "Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases." The Court stated:

"Under I.C. § 32-201, a marriage which is not solemnized requires the mutual consent of competent parties, followed by a mutual assumption of marital rights, duties or obligations. Hamby v. Simplot Company, 94 Idaho 794, 498 P.2d 1267 (1972).

"It is established that the consent required by I.C. § 32-201 must be given when the parties enter into the contractual responsibilities of marriage. In re Gholson's Estate, 83 Idaho 270, 361 P.2d 791 (1961). That consent need not be manifested in any particular manner and no magic words are necessary but rather consent may be express or it may be implied from the parties' acts and conduct. I.C. § 32-203.

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"The prior decisions of this Court make clear that when a couple...